147-NLR-NLR-V-24-PATHBERIYA-v.-KACHOHAMY.pdf
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Present: Jayawardene J.
P ATHBERIYA v. KACHOHAMY.
1SI—C. R. Avissawella, 12,100.
Money lent oh a promissory note—Action for money lent—EvidenceOrdinance, 1895, s. 91—Action against married woman living inseparation front her husband without joining her husband—Con-tract by a married woman living in separation.
Where money has been; lent on a note, a claim for money lent canhe maintained apart from the promissory note. Section 91 ofthe Evidence Ordinance is not a bar to such a claim.
A married woman who lives in separation from her husband byprivate agreement cannot bring or defend an action, unless thehusband is a party to the action. Any judgment obtained againsther in the absence of her husband is null and void.
A married woman so living in separation cannot enter into avalid contract.
T HE facts are set out in the judgment.
/Elian Pereira, for plaintiff, appellant.
E. (J-. P, JayatiUeke (with him R. C. Fonseka), for defendant,respondent.
Cur. adv. vult.
September 18, 1923. Jayawardene J.—
This is an action to recover a sum of money from a married woman.The plaintiff in his plaint alleged that' the defendant made a promis-sory Aofce in his favour for Rs. 100, and he claimed the sum due onthe note, with interest. The defendant denied the making of thenote, and objected inter alia, that even if she had executed it, itcould not be enforced against her, as she was a married woman.On this answer being filed, the plaintiff amended his plaint by making
1988.
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an alternative claim for money lent. The defendant by her furtheranswer denied that plaintiff lent her any money,. At the trial theplaintiff abandoned his claim on the promissory note, and thefollowing issues of law were framed in addition to certain issuesof fact:—
Is the plaintiff entitled to sustain this claim ?
Is the defendant liable on the contract sued upon ?
(8) If the defendant is married, can the defendant be sued without her husband being joined as defendant ?
The first issue involved the question whether a claim for moneylent can be maintained apart from the promissory note, when themoney has been lent on a note. The learned Commissioner decidedall these issues in the defendant's favour, and the plaintiff appeals.He held that section 91 of the Evidence Oridinance preventedplaintiff from leading oral evidence of the contract of loon. On thefirst issue, Mr. Pereira, for the appellant, contends that the Judgewas wrong in holding that section 91 of the Evidence Ordinancebarred the plaintiff from suing on the contract of loan, and that hisonly cause of action was on the note. Section 91, it is argued, nodoubt, enacts that when a contract has been reduced to the form ofa writing, no oral evidence can be given in proof of the terms of suchcontract, but it has never been held in Ceylon that that rule ofevidence prevented an alternative claim being made on ** a moneycount ” when money has been lent on a promissory note. He citedPalaniappa v. Saminathan,l Sochalingam v. Kathetha Bebe,2 Valli-appa Chetty v. Silva,* Mohamadu Bhai v. James,* and Vyaitilingamv. Karunakarar
Mr. Jayatilleke,. for the respondent, seeks to support tbs rulingof the Commissioner by appealing to certain Indian authorities,particularly to the cases of Sheikh Akbar v. Sheikh Khan * and MnthuSastrigal v. Vievanatha7. These cases seem to support Mr. Jaya-tilleke 's contention, especially the Madras case. In the Calcuttacase Garth C.J. drew a distinction between two classes of cases:First, where a cause of action is once complete in itself whether forgoods sold or for money lent, or for any other claim, and the debtorgives a bill or note to the creditor for the payment of the money;and, secondly, M where the original cause of action is the bill or noteitself, and does not exist independently of it, as for instance, whenin consideration of A’s depositing money with B, B contracts bypromissory note to repay it at six months’ date." In the formercase, if the bill is not met at maturity, the creditor may disregardthe note and sue for the original consideration, but in the latter case‘‘there is no cause of action for money lent or otherwise than upon
» (1913) 17 N. L. R. 56.* (1919) 21 N. L. R. 234.
11926) 2 C. W. R. 65.6 (1920) 22 N. L. R. 343.
(1916) 20 N. L. R. 340.• (1881) 7 Cal. 250.
7 (1915) 38 Mad. 660.
1MB.
Jmwaa
J.
laMtrb*
v.
Kaehohamy
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the note itself, because the deposit is made upon the terms containedin the note and no other. In such a case the note is the only contractbetween the parties, and if the note is not admissible in evidence, thecreditor must lose his money.”
This judgment was, however, explained by another Chief Justiceof the same Court (Sir Comer Petheram) in Pramatha Nath Sandalv. Dwarka Nath Dey,1 where referring to the passage from the judg-ment of Garth C.J., which I have placed within inverted commas,the learned Chief Justice said:
m
Imwis-ran J.
PathMriya
9,
KaMamy
“ These words, taken alone, may seem to indicate that when a billor note is taken for a debt, the action must be brought uponthe bill or note ; and that if for any reason the documentis excluded, the action must fail ; but a reference to theearlier portion of the judgment shows that such was notthe meaning of the Chief Justice, and that when he spokeof a deposit he did not mean a loan, as he then says wheremoney is lent, and a bill or note given for the loan whichis paid at maturity, the creditor may disregard the noteand sue on the original consideration. This is in accord-ance with the case of Oolap Chand Marwaree v. ThdkuraniMohokoom Koavee 3 and with many unreported decisions ofthis Court, and is, in my opinion, the law in this country aswell as in England.”
The Judgment of Garth C.J. was also commented upon by a ChiefJustice of the High Court of Bombay, who subsequently becameChief Justice of Calcutta and later a member of the JudicialCommittee of the Privy Council—Sir Lawrence Jenkins—who said :
” The latest Calcutta case which I have been able to find isPramatha Nath Sandal v. Dwarka Nath Dey {supra), in whichthe judgment was delivered by Petheram C.J., who bad awide experience and intimate knowledge of commerciallaw. There it was held, in a case on all fours with thepresent, that a suit would lie on the consideration. Thejudgment is further valuable as explaining certain remarksof Garth C.J. in Sheikh Akbar’s case {supra), which was liableto be misunderstood, and probably have influenced theDistrict Judge in this case. It has been suggested that thesection 91 of the Evidence Act excludes the operation of theseEnglish coses. See illustration (6). In my opinion such acontention is not well founded. It is perfectly true thatthe terms of the contract coutained in the hundi can, apaitfrom the conditions which permit secondary evidence,only be proved by the hundi,. but this does not preventproof of the loan independently of the note.” Krishnajiv. Rajmal.8
1 (18$6) 23 Cal. 851.* (2878) 3 Cal. 324.
• (289$) 24 Bom. 360.
( 400 )
1988.
Jatawar*Dam J.
Palhberiya
v.
KacMkamy
All these judgments were again referred to in another Calcuttacase (Ram Bahadur v. Dusuri Ram *), where Mookerjee J. attemptedto reconcile them.' He said:
“It has been argued, however, by the learned Government pleaderthat as the promissory note is the foundation of the claim,the effect of the exclusion of the promissory note fvomevidence is substantially to make the claim incoperativeand unenforceable. But this view is not supported by thecases upon which reliance can be plaoed.”
After referring to the English cases on the point and to someIndian cases, the case from VII. Calcutta among others, hecontinued: —
44 It may be conceded that at first sight there does appear to be aconflict of judicial opinion upon this question ; but upona closer examination of the cases it will appear that theymay be reconciled if we recognize the principle that thetrue question in cases of this character is, whether thepromissory note has been taken in discharge of the claim, orwhether it is merely taken on account of the debt ; in otherwords, if the claim is founded on the original consideration,it can be enforced, provided that the original consider* •ation has not merged in the bond or promissory note(Ghenhaaapa v. Lakshman *). This in fact is the principlewhich was recognized by Sir Richard Garth in SheikhAkbar v. Sheikh Khan (supra) and by Sir Lawrence Jenkinsin Kriahnaji v. Rajmal (supra). In the case before us, theclaim is substantially based on the original consideration ;when the promissory note was given, it did not. furnish anyadditional security for the loan. The loan itself implieda promise to repay, and if the promissory note be treatedmerely as evidence of the loan, although such evidencemay be excluded by operation of law, there is no goodreason why the plaintiff should not be permitted to sueon the original consideration."
The effect of these later Indian decisions is to reduce the authorityof the judgment of Garth C.J. to u shadow, and it must he regardedas a decision on the particular facts of that case. There remains,however, the Madras case (Muthu Saatrigal v. Visvanatha (supra) ).
In that case, Sadas'va Ayyar J. practically adopted the reasoningof Garth C.J., on which a previous Madras case (l*nthi Iiedtli v.Velayudavixan n; was based, and held that where the contract inthe case of a loan and a simultaneous promissory note has beenreduced to writing in the form of a note, which contains the definite
1 (1912) 17 Cal. L. J. 399.• (1893) IX Bom. 3VD.
• (1887) 10 Mad. 94.
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terms of the contract, an inconsistent or consistent 'implied contract;cannot be resorted to because the contract as entered. Jn the'promissory note cannot be admitted in evidence: —
“ To import,” he added, ” the doctrine laid down in Englishcases about, vague obligations to repay arising out of equityand not out of contract, or about obligations which can beenforced if the plaintiff skilfully draws up his plaint as oneon account for money had and received concealing thereal contract of loon which had been reduced to the formof a document is, it seems to me, merely 'trying to nullifysection 91 of the Indian Evidence Act …. Totreat the money paid at the very time of the execution ofthe promissory note inadmissible in evidence, as givingrise to an independent contractual or other obligation,seems to me to be inadmissible.”
Spencer J. did not disagree with the view expressed by Sir LawrenceJenkins in Krishnaji v. liajmal (supra), but agreed with SadasivaAyyar J., as he was not prepared to dissent from the view takenrepeatedly by the High Court of Madras. It cannot be denied thatthere is great force in the view expressed by Sadasiva Ayyar J., but,on the other hand, there is the high authority of Sir Lawrence Jenkinswho thought that the contention that section 91 excluded theoperation of the English cases which he followed was not wellfounded. See also Banarsi Prasad v. Fa sal Ahmad? where theAllahabad High Court took the same view.
In this state of the authorities, it cannot be said that the Indiandecisions entirely support Mr. Jayatilleke’s contention. Theyrather support the view taken in the Ceylon cases which Mr. Pereiracited on behalf -of the appellant. It must also be remembered thatsection 91 did not enact any new rule of evidence, it merely embodieda principle which has always existed under the English law andwhich prevailed in Ceylon long before the Evidence Ordinance gaveits statutory force. Courts in Gey Ion have always allowed alterna-tive claims, for money lent to be made in cases in which money hasbeen lent on a bill or note, and there has arisen a cursus curies whichhas acquired the force of law and which it is now too late to disturb.This rule is clearly laid down by De Sampayo J. in Mohamadu Bhain. James (supra) where he said:
” In a case of a contract of loan, the lender is entitled to maintainan action to recover the amount independent of any writingwhich the debtor may have given. A common instanceof such a case is where a plaintiff, in addition to declaringupon a formal document, includes in his plaint what isknown as the money counts.”
1988.
J4VAWAB-DSNB J.
PathJberiya
t.
Kachohamy
1 (1905) 28 All. 298.
( 492 )
19S&
XKTAVitt-vmmm J.
JtoOfttWyn
Katbdkm*
I therefore hold that the plaintiff is entitled to maintain hisclaimon the^altemflHtiyia, pause of action, and that the decision of the learhedCommissioner, on' the first issue, 4a wrong;.^V v ^ °
Hie other two issues might be' dealt with- together.-'' It has beenproved that the defendant is a married woman, whose husband isstill living. She has lived apart from" him for rabout twenty-fiveyears, and is now the mistress of one iLoparis.;, During the trial thehusband's name and address were..disclosed, but no application wasmade .to‘add him as a party:Under the Roman-Dutch law. which
applies here, the- wife is under the perpetual guardianship of thehusband, and is not entitled to bring or defend an action, uni ass thehusband is a party to such an action. If the husband cannot bejoined as a party, the Court may authorize her to proceed on withthe action. Any judgment obtained against- her in the absence ofher husband is null and void. The fact that the parties haveseparated and are living apart by private agreement does not deprivethe husband of his right to act on her behalf. This applies whetherthe parties are married in community or not. (Voet 5, 1, 14-19.)It is also contended that a married woman living in separation canenter into a valid contract so as to bind herself to others. Noauthority has been cited for this proposition, but Voet lays down-ed, 2, 19), that where married persons live apart- by mutual agree-ment, without a decree of separation a mens a et thoro, the marriagestill exists, and all the results of marriage continue exactly as it therehad been no such mutual agreement and living apart. One of. theresults of marriage is that the wife cannot enter into a contractwithout the express or implied consent or ratification of her husband,and if she does contract without such consent, the contract is nulland void. There are certain cases in which the wife can enter intocontracts, but the contract in question in this case does not fallwithin any of those exceptions. The learned Judge has rightlyheld against the plaintiff on the second and third issues. Thoplaintiff cannot, therefore, maintain this action, and it must, bedismissed. The judgment of the Commissioner is affirmed, with,costs.
Dismissed.